ILNews

Tug-of-war

Michael W. Hoskins
October 28, 2009
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Juvenile Justice

Bonaventura/PayneLake Superior Judge Mary Beth Bonaventura recently found herself doing what no other Indiana juvenile judge had done previously. She phoned the state’s Department of Child Services and asked Director James Payne, himself a former juvenile court judge, for permission to place a child outside Indiana. He reviewed the case and granted her request.

But that instance isn’t what bothers Judge Bonaventura or her colleagues throughout the state; it’s that they’re forced to seek permission at all.

An unexpected, last-minute change in a bill during the 2009 special session stripped away much of the juvenile judges’ decision-making discretion for placements outside Indiana, and now all three government branches are reacting to how and why that happened and whether it strengthens or hinders Indiana’s juvenile justice system.

“This used to be a judicial decision, but now it’s an executive department decision,” said Indiana Court of Appeals Chief Judge John Baker, who recently sat as a member of the legislative Commission on Courts as it examined this issue. “I wasn’t aware it was broken, or at least that there was a discussion outside the judiciary that it was broken.”

Special session surprise

With PL 182-2009(ss), Section 387, lawmakers amended Indiana Code §31-37-19-3(f) to require DCS recommendation or approval for any out-ofstate placement, or else the county must pay for placement. The change came after the Indiana Supreme Court in April ruled against the state agency and gave more deference to juvenile judges in making placement decisions when there’s a dispute about who should pay. Taking its case directly to the General Assembly, the DCS asked the lawmakers to tweak state statute and give it more control.
 

It's not the rightThe change happened without public discussion and surprised the judges, who were still reeling from sweeping statutory changes made a year earlier giving the DCS more authority over juvenile justice decisions and shifting some funding to the state.

The gamut of issues came up during the two Commission on Courts meetings in October, where all sides came together to discuss the issues and some even pointed out potential constitutional issues that could arise.

“It’s arrogant for judges to say or think that only judges can make those decisions and not the executive branch, but our state’s policy has been to leave it up to the judges and not have them second-guessed by the executive branch,” Chief Judge Baker said, making an observation in his role filling in for Chief Justice Randall T. Shepard.

Speaking about her experience in Lake County, Judge Bonaventura said all placements are about what’s best for children and families, and the judges work to keep juveniles inside the state as much as possible, as long as needs are met. But she doesn’t like the idea of singling out and treating juveniles differently based on placement. Doing so, she said, raises potential constitutional concerns â?? a separation of powers violation and questions about how the unrelated juvenile justice provision was lumped into a massive budget bill.

John PayneTippecanoe Juvenile Judge Loretta Rush, who chairs the Indiana Supreme Court’s Juvenile Justice Improvement Committee, told the interim legislative panel that all of the recent statutory changes negatively impact their ability to do their job effectively.

“These decisions (that judges make) weigh heavily on us, and it sets our juvenile justice system backward to take away this judicial discretion and place it with a state executive agency,” she said.

Opposing sides

Several commission members voiced their frustration about the last-minute change and said they didn’t know about the provision until it became law. After hearing from a handful of unhappy juvenile judges, the committee voted overwhelming to recommend that the General Assembly repeal that provision during the upcoming session.

Rep. Matt Pierce, D-Bloomington, called the revision a “fiscally-based decision that wasn’t thought through.” Other lawmakers agreed and voiced similar concerns, saying they trusted the decisions Indiana juvenile judges have made and that there hasn’t been any rash of out-of-state placements about which the state should be concerned.

Chief Judge John Baker“I was totally unaware this was in the budget, and there ought to be a do-over,” said Sen. Tim Lanane, D-Anderson. “This goes very much to the independence of our judiciary and who’s in the best position to decide what’s in the best interests of a child. I hope there would be extensive debate on this.”

The DCS director defended the law change that he’d specifically asked for during the special session, and Payne said the rationale is focused more on best practices than money.

“I’m not here to talk about money, but money is a part of this,” he told committee members. “We have the treatment programs here to adequately serve their needs, and keeping children close to home is a best practice and something this state can and should support.”

The agency’s main priority is to keep children close to home and “engage families” as much as possible, Payne said. Outof-state placement is used as a last resort, and research shows Indiana has the capacity to keep virtually every child here.

Nationally, many states are turning away from out-of-state placements, and more than half have limited them in order to keep juveniles close to home, Payne said. He presented lawmakers with a 2008 report from the non-profit group known as IARCCA, which describes itself as an Association of Children & Family Services, saying Hoosier judges have many in-state placement options and there’s a 30 percent bed capacity that remains open. He said Indiana could use existing resources to keep virtually every child within the state and serve them adequately.

But judges disputed the report, some saying that it doesn’t take into consideration that those facilities often decline to take a particular juvenile when they are asked to do so by a judge.

The decissionsDespite Payne’s insistence that judges can still make out-of-state placements without DCS approval, juvenile judges say their hands are tied because it’s a “pay to place” setup: If they don’t consult the DCS first, then the cash-strapped counties would have to find money to pay for the placement. That is difficult in tough economic times, but especially since another provision of the 2008 law change took away and transferred to the state the local county fund previously used to pay for those placements and services.

Judge Rush said she recently asked her county council to set aside money and devote a specific line item in the budget to use when the juvenile court disagrees with the DCS, but the county refused to do that.

St. Joseph Juvenile Judge Peter Nemeth criticized how the DCS operates and continues getting more authority to call the shots on juvenile offenders, delinquents, and Children In Need of Services. The agency, he said, often seems as though it’s metaphorically throwing darts at a dartboard without knowing any particulars about a child or family, and disregards recommendations by the key players and even its own local caseworkers.

“It’s not the right thing to do, and it certainly interferes with judges doing their job,” he said. “They want to look at a piece of paper to make decisions. ... Is that the way we want our justice system to operate for our kids and their families?”

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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